Supreme Court ruling threatens to invalidate Kansas hard 50 sentences

A U.S. Supreme Court decision that prompted the Kansas Attorney General’s Office to drop plans to seek a hard 50 sentence against convicted wife-killer Brett Seacat could invalidate the hard 50 sentence given to Scott Roeder, who was convicted of murdering abortion doctor George Tiller.

The ruling also may force prosecutors to abandon plans to seek hard 50 sentences in some other cases, including the case of a Wichita man who was convicted last week of stomping his girlfriend to death with steel-toed boots. It could prevent the state from seeking a hard 50 for a man convicted last month of strangling a Wichita woman in 2011 while on parole for murdering a woman in Lawrence more than two decades earlier.

District Attorney Marc Bennett said the ruling, known as the Alleyne decision, could have an impact on any hard 50 case in Kansas that is on appeal, and could change the way prosecutors deal with first-degree murder cases in the future.

“Clearly it will be an issue that we will have to address,” he said.

Defense lawyer Richard Ney was more blunt in his assessment of the ruling.

“The hard 50 is dead as far as it exists in Kansas right now,” he said. “For cases that are not final, and Roeder would be one of them, I think they’re certainly in question.”

If the state wants to keep its hard 50 sentencing law, Ney said, the Kansas Legislature will probably have to adopt a sentencing system that includes a separate penalty phase in any first-degree murder trial where prosecutors seek a 50-year minimum sentence.

When the state enacted a hard 40 sentencing law in 1990 – the precursor to today’s hard 50 law – it used such a system where the jury that found a defendant guilty of first-degree murder would sit at a separate penalty phase and determine whether to impose a hard 40 sentence. The state later turned the decision of whether to impose hard 50 sentences over to judges.

The Alleyne decision

The Supreme Court ruling that is threatening to invalidate the Kansas law involved Allen Alleyne, who was convicted of taking part in a 2009 robbery in Richmond, Va., in which his partner held a gun to the neck of a convenience store manager. A jury convicted Alleyne of taking part in the robbery but was not asked to determine whether he brandished his gun during the crime.

The sentencing judge, however, ruled that Alleyne reasonably foresaw that his partner would brandish his gun during the holdup. And because a weapon was brandished, the judge followed Virginia law and increased Alleyne’s minimum sentence from five to seven years. In overturning the sentencing, the Supreme Court said the brandishing of a weapon – or any element of a crime that can increase a prison sentence – must be proved beyond a reasonable doubt to a jury.

In releasing the Alleyne decision, the Supreme Court sent a similar case – Astorga v. Kansas – back to Leavenworth County District Court for resentencing. Kansas Attorney General Derek Schmidt cited both cases in his decision to abandon efforts to seek a hard 50 sentence in the Seacat case.

“Upon thorough review of the U.S. Supreme Court’s decision in Alleyne, the state does not believe the procedural and factual posture of this case allow for the application of (the hard 50 law) in its current form. Therefore, the state is no longer seeking the imposition of a mandatory term of imprisonment of 50 years,” he wrote in a court filing.

The Kansas law

As it now stands, Kansas’ hard 50 law says a judge must weigh aggravating and mitigating factors before deciding whether to grant a prosecutor’s request to impose a hard 50 sentence.

The law lists several aggravating factors that include a prior conviction for a crime that caused death or great bodily harm, the commission of an act that creates a great risk of death to more than one person, and the commission of a crime in an especially heinous, atrocious or cruel manner.

The law also lists mitigating factors that may include a defendant’s age, a defendant’s lack of criminal history and the fact that a defendant was a minor participant in the crime for which he or she was convicted.

If a judge rules that one or more aggravating factors exist, and decides that the existence of such factors is not outweighed by any mitigating circumstances, the law says the defendant shall be sentenced to life without parole for a minimum of 50 years.

The first local impact of the ruling could come on Aug. 1 at the sentencing of Tyrone Walker, 47, who was convicted of first-degree murder in the strangulation death of Janis Sanders. Her nude body was found in the 1100 block of South Washington on June 4, 2011. During his trial last month, jurors were told that Walker was convicted in Douglas County of a committing a similar murder in Lawrence in 1989.

Another test could come on Aug. 15 at the sentencing of Anson Bernhardt, 42, who was convicted Thursday of premeditated first-degree murder in the Sept. 30 death of Amber Kostner. Prosecutors said Bernhardt kicked and stomped Kostner 20 to 30 times with steel-toed boots before leaving her to die at the side of the road near Campus High School.

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